Problematic issues pertaining to racketeering offences in the prevention of organised Crime Act 121 of 1998

Abstract:

Organised crime is a worldwide phenomenon, which also affects South Africa. In
many instances organised crime is transnational. Consequently, South Africa had to
develop legislation in order adequately to deal with organised syndicates and
associations of criminals, and bring its legal system in line with international
standards aimed at combating transnational organised crime.
In the United States of America organised crime, and any conduct that meets a
“pattern of racketeering”, are prosecuted under the Racketeering Influenced and
Corrupt Organizations Act 18 USCA 1961-1968. This legislation played a significant
role when racketeering offences were formulated in the South African Act.
The Prevention of Organised Crime Act 121 of 1998 inter alia includes aspects such
as racketeering, money laundering, gangs and the civil recovery of property. It also
deals with conduct of individual wrongdoing and crimes that cannot be categorised
as organised crime. This study focuses on problematic aspects with regard to
racketeering offences in Chapter 2 of the Act that are probably going to labour the
Constitutional Court and/or the Supreme Court of Appeal in the near future.
One of the problematic aspects of Chapter 2 of the Act is that it does not include a
definition of “racketeering”. It only describes the different types of conduct which may
lead to a successful prosecution on racketeering offences. The legislation also
introduces new concepts, such as “enterprise” and “pattern of racketeering activity”.
Therefore, in order to determine whether the State will succeed in prosecuting an
accused with racketeering offences, it must be established what is meant by the
terms of being part of an “enterprise” and what a “pattern of racketeering activity”
entails.
Also of importance is the requirement that two or more offences referred to in
Schedule 1 of the Act must have been committed for a successful prosecution.
Although the South African courts have considered this aspect there is still room for discussion as to whether an accused must have previously been convicted of two or
more criminal offences referred to in Schedule 1 for a conviction on racketeering
offences, or whether the commission of one offence will suffice.
The offence of racketeering does not only consist of the commission of an act in
itself. The membership or association with a legal or illegal organisation also plays a
vital role to determine culpability. This study looks at the possible role (s) that an
accused may fulfil when he is involved as a member of an organisation involved with
racketeering offences. Another aspect that needs to be clarified is the requirement relating to fault. The
element of unlawfulness is also problematic when an accused did not foresee the
possibility of unlawfulness of his actions. Close consideration is given to the
requirements for culpability and whether mere negligence on the part of a role player
is sufficient as a form of mens rea for a successful prosecution or not.
The element of unlawfulness is also discussed. Ordinary citizens may raise the issue
that they did not know that the commission of two or more offences mentioned in
Schedule 1, may lead to the prosecution of a racketeering offence. Therefore, it is
crucial to determine whether a role player must have the necessary knowledge of
unlawfulness to commit the racketeering offences.
The fact that the Act has been introduced in the South African legal system to
criminalise racketeering offences does not exclude the scenario that each case must
be decided on its own particular set of facts. It is clear from the research presented
that there must be one or other link between the accused person, the “enterprise”
and the “pattern of racketeering activities” for a successful prosecution on a
racketeering offence.
This study seeks to provide assistance to legal practitioners when their clients are
faced with prosecution on a racketeering offence. The study also discusses the real
risk of a possible duplication of convictions.